Chandu @ Santhosh Kumar, Residing at Kadayara Veedu, T.C. NO. 42/462 Mukkolakkal, Vallakadavu, Thiruvananthapuram vs State of Kerala and Others

V.K. Mohanan, J.—The accused in a prosecution for an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short ''the N.I. Act'') is the revision petitioner as he is aggrieved by the judgment dated 25.5.2010 in S.T.C. No. 2874 of 2009 of the court of Judicial First Class Magistrate-I, Kottayam and the judgment dated 2.3.2012 in Crl.A. No. 245 of 2010 of the court of the Additional Sessions Judge (Adhoc-II), Kottayam. As per the appellate court judgment, the conviction recorded by the trial court is confirmed and only the sentence of imprisonment is modified and thus, the revision petitioner is sentenced to undergo simple imprisonment till rising of the court and to pay a compensation of Rs. 95,000/- to the complainant and in default, he is directed to undergo simple imprisonment for a period of three months.

As this Court is not inclined to interfere with the order of conviction, learned counsel for the revision petitioner submitted that the petitioner may be granted some breathing time to receive the sentence modified by the appellate court and to pay the compensation.

Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively and while granting some time to the petitioner as sought for, the interest of the complainant has also to be protected.

In the present case, the cheque in question is dated 28.10.2007, that too for an amount of Rs. 95,000/-. Though the courts below have concurrently found that the cheque in question was issued towards the discharge of the liability that is due to the complainant, so far no amount is seen paid in spite of the fact that the appeal was disposed of on 2.3.2012 and now again, the petitioner seeks time. The Honourable Apex Court in the decision reported in Damodar S. Prabhu Vs. Sayed Babalal H., has held that in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. Therefore, considering the above settled legal position, I am of the view that the interest of the complainant has to be protected since such a huge amount is due to the complainant for the last five years.

In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner u/s 138 of the N.I. Act as recorded by the courts below. While confirming the sentence of imprisonment as ordered by the lower appellate court, the direction to pay compensation is set aside and the revision petitioner is sentenced to pay fine, which is fixed as Rs. 1 lakh. Accordingly, the revision petitioner is directed to deposit the fine amount of Rs. 1 lakh within forty five days from today and in default, he is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to appear before the trial court on 18.02.2013 to receive the sentence modified by the appellate court and confirmed by this Court and to deposit the above fine amount. In case of any failure on the part of the revision petitioner in appearing before the trial court on the above date to receive the sentence modified by the appellate court and confirmed by this Court and to deposit the fine amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence and to realise the fine. It is made clear that, the revision petitioner shall deposit the fine amount directly in the trial court. On realisation of the fine amount, the same shall be disbursed among the legal heirs of the complainant equally as compensation u/s 357(1)(b) of the Cr.P.C. Coercive steps, if any, pending against the revision petitioner shall be deferred till 18.02.2013.